The Spanish Supreme Court has established a definitive legal doctrine regarding the abuse of temporary contracts within public administration. In a ruling dated May 11 and published this Tuesday, the court determined that only workers who have passed a competitive examination, or “oposición,” can consolidate a permanent position.
The decision stems from a case involving a worker at the Madrid City Council. It arrives just one month after the Court of Justice of the European Union criticized Spain for failing to sufficiently compensate or punish the abuse of temporary employment in the public sector.
The Requirement for Competitive Exams
The Social Chamber of the Supreme Court emphasized that granting permanent status to interim workers who have not passed a public employment access procedure would violate the Constitution. Such an action would contradict established principles of equality, merit, and capacity in accessing public office.
However, the court introduced a specific nuance. Permanent conversion may be possible for individuals who passed a competitive exam but did not secure a spot, provided they subsequently signed limited-duration contracts and suffered an abuse of temporality.
The ruling states that this conversion is not “contra legem” (against the law) because the individual already met the requirements of equality, merit, and capacity. The court noted that a violation of Clause 5 of the Framework Agreement on fixed-term work, which indicates a structural need for workers, necessitates this conversion.
Compensation and Potential Sanctions
For workers who cannot be converted to permanent status, the Supreme Court identified two types of possible sanctions for the abuse of temporality. The first is an “extinctive” indemnity triggered by the end of a contract.
Depending on the salary and the cause, this could amount to 20 days per year worked, capped at one year’s salary, specifically when a permanent employee fills the post. Other sources suggest this could reach up to 33 days depending on the case.
The second is a “compensatory” indemnity for damages suffered, which remains independent of the first. This calculation is more complex, as the court must differentiate between material and moral damages, considering the employee’s functions, contract duration, and the “uncertainty” experienced.
The court specified that those who retire, resign, or voluntarily choose not to participate in selection processes still maintain the right to have the abuse of temporality sanctioned. The ruling mentions the possibility of administrative sanctions imposed by labor authorities to deter such practices—a move supported by the CCOO and CSIF unions.
Government Response and Current Statistics
Sources from the Ministry for Digital Transformation and Civil Service told EFE that the ruling ratifies the impossibility of making all temporary workers permanent without exams. The government has particularly highlighted the situation in autonomous communities, where “eventuality rates” reach 40%, compared to 4.7% in the General State Administration.
The government claims that following the approval of legislation to reduce this issue, temporality rates have dropped from 39% in 2023 to 32.7% currently. They report that nearly 420,000 positions have been stabilized in Spain, exceeding the 300,000 committed to the European Commission.
What May Happen Next
According to Pedro Feced, lawyer for the plaintiff, lower courts and the High Court of Justice must now comply with this Supreme Court precedent. However, the future for interim workers may still shift as the Court of Justice of the European Union has yet to rule on further complaints.
Legal uncertainty may persist regarding several key areas. These include the status of workers who could not pass an exam because none were convened, the exact determination of indemnity amounts, and the specific number of contracts or years of service required to legally qualify as “abuse”—with some sources suggesting a threshold of two or three years.
Frequently Asked Questions
Can all interim workers become permanent employees?
No. The Supreme Court ruled that granting permanent status without a competitive access procedure violates the Constitution and principles of equality, merit, and capacity.
Who is eligible for permanent conversion under the new ruling?
Those who have passed a competitive exam but did not obtain a spot, and who subsequently faced an abuse of temporality through successive limited-duration contracts.
What types of compensation are available for abuse of temporality?
There are two types: “extinctive” indemnity (related to the end of the contract) and “compensatory” indemnity (related to material and moral damages and uncertainty).
Do you believe competitive exams are the only fair way to ensure equality in public employment?
